Restoring Jim Crow

Historians will have a tough time divining who was most responsible for the collapse of real democracy in the US in the early 21st century, Mitch McConnell or John Roberts. McConnell has effectively neutered the entire federal legislative branch for his own personal and his own party’s political power, breaking democratic norms and refusing to protect American elections from interference that would only benefit his party and enhance his power. Roberts has effectively disenfranchised millions of Americans and politically empowered the wealthy in order to keep that same political party in power, even when it does not receive the majority of votes. Together, they have created a tyranny of the minority.

Citizens United has allowed hidden pools of money, sometimes from foreign sources as we saw in 2016, to pervert the electoral process. Shelby v Holder and Husted v Randolph have led to largely successful efforts at voter suppression not seen since before the Voting Rights Act of 1965 (VRA). And this week’s Rucho v Common Cause decision permitting extreme partisan gerrymandering simply creates a legal pretext for states to engage in racial gerrymandering, again taking us back to the pre-1965 norm. It is a remarkable and shocking record of anti-democratic decisions that essentially revives Jim Crow as it relates to our electoral process.

Robert’s disingenuousness throughout these Supreme Court decisions has also been remarkable. In his majority opinion in Shelby v Holder, Roberts declared that “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting” found in Section 2 of the VRA, which primarily allowed challenges to racial gerrymandering only after the fact of disenfranchisement. Five year later, Roberts joined Alito’s majority opinion in the Abbott v Perez decision which said the “good faith of [the] state legislature must be presumed” in redistricting cases, which basically allowed racial gerrymandering as long as the legislature hid that fact effectively and further limited the actions that could be challenged under Section 2. In this new Rucho decision, Roberts now provides legislatures with the legal pretext for open racial discrimination simply by calling it discrimination against Democrats. As Rick Hasen writes, using North Carolina as an example, “One cannot discriminate against Democrats without discriminating against African-Americans in North Carolina, and vice versa”. In effect, the VRA restriction against racial gerrymandering is now, for all practical purposes, dead as a matter of law.

Roberts is even more disingenuous in the Rucho decision when he tries to lay out alternative paths to restricting partisan gerrymanders that do not involve federal courts. According to Roberts, in those states where it is allowed, citizens can use a ballot initiative to create redistricting commissions. But Roberts himself wrote the minority dissent in an Arizona case that upheld such initiatives as not being an unconstitutional encroachment on the legislatures’ ability to redistrict, with the swing vote being that of Kennedy. It is probable that Roberts’ prior dissent would actually now be the majority opinion if a similar case were to find its way to the Court today, which itself is also likely. Similarly, Roberts suggests state Supreme Courts might also rule partisan gerrymanders violate state constitutions. But that too is likely to face legal challenges from legislatures who would claim it is judicial encroachment on their own constitutional powers or, as was the case in Pennsylvania, attempts by the legislature to impeach justices who make such rulings or, as we have seen in North Carolina, legislative attempts to pack those courts. And Republican legislatures, such as Missouri and Florida, are also enacting laws that would bar citizens from using ballot initiatives to change the state constitution, thereby blocking another path to non-partisan gerrymandering.

But Roberts most disingenuous claim in the Rucho decision is that it is simply impossible to come up with a reasonable justiciable standard that would determine at what level partisan gerrymandering is too extreme to be constitutional. As Kagan’s dissent points out, at least five lower courts have come up with a standard test for determining whether a partisan gerrymander is unconstitutional. Writes Kagan, “Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims…And both courts (like others around the country) used basically the same three-part test to decide whether the plaintiffs had made out a vote dilution claim. As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation. First, the plaintiffs challenging a districting plan must prove that state officials’ ‘predominant purpose’ in drawing a district’s lines was to ‘entrench [their party] in power’ by diluting the votes of citizens favoring its rival…Second, the plaintiffs must establish that the lines drawn in fact have the intended effect by ‘substantially’ diluting their votes…And third, if the plaintiffs make those showings, the State must come up with a legitimate, non-partisan justification to save its map…If you are a lawyer, you know that this test looks utterly ordinary. It is the sort of thing courts work with every day”. Per Hasen, “For a court that regularly uses court-created standards — such as those determining when someone has acted with racially discriminatory intent or when a monopolist created ‘substantially anticompetitive effects’ — the opinion written by Chief Justice John Roberts is disingenuous”.

In what seems like a remarkably timed decision, the Governor of Florida, Ron DeSantis, just signed the bill that would require all 1.4 million Florida ex-felons, who have had their voting rights restored by a ballot initiative that passed overwhelmingly in 2018, to pay all outstanding fines, fees, and restitution before they will be allowed to actually vote. As Mark Joseph Stern notes, “Florida is a pioneer of ‘cash-register justice,’ charging defendants ‘user fees’ to finance its criminal justice system and saddling them with massive fines upon conviction. These fines put most defendants in a crippling financial hole from which few ever escape…[D]efendants must pay hundreds or thousands of dollars to fund court costs, jails, and ‘crime prevention’ programs. The legislature sets minimum charges, but courts often have discretion to maximize them. Floridians convicted of a felony have to pay to obtain a public defender ($100 to $1,000) and to reinstate a suspended driver’s license ($60 to $500). Receive medical treatment in prison? You’re on the hook for the cost…According to WLRN, Florida courts levied $1 billion in felony fines between 2013 and 2018”. It is estimated that this law will effectively negate the restoration of voting rights for 1 million of the original 1.4 million whose rights were restored.

Florida has basically replaced one Jim Crow era law, the disenfranchisement of felons, with another Jim Crow era law, the poll tax. But, here again, the Supreme Court has ruled that certain fees, such as the fees for obtaining voter IDs, are not a constitutional impediment to voting. It is therefore highly probable that restricting voting until the fees imposed by the state of Florida in the process of felony convictions would also be ruled as constitutional not only by the Florida Supreme Court, which is dominated by conservative Republicans, but also by Roberts’ Supreme Court.

The Court’s decision on gerrymandering will only lead to more blatant attempts at racial gerrymandering, especially in the South, under the guise of partisanship. It will also, in its own way, embolden increasing attempts at voter suppression. As Josh Marshall writes, “the court’s conservatives simply don’t believe that political equality — the idea that Americans must be able to participate in the political process on a more or less equal footing — is a crucial value to be upheld. Put simply, they don’t see fair elections, or democracy itself, as all that important”. Perhaps the bigger problem is that the Republican party sees fair elections and democracy itself as a threat to its continued power and believes that unfair elections are its best and often only path to victory.